State v. Piazza

• Decision Date: 29 April 1889
• Citation: 6 So. 316,66 Miss. 426
• Court: Mississippi Supreme Court
• Parties: THE STATE v. FRANK AND MARY PLAZZA

6 So. 316

66 Miss. 426

THE STATE v. FRANK AND MARY PLAZZA

Supreme Court of Mississippi

April 29, 1889

APPEAL from the circuit court of Warren county, HON. RALPH NORTH Judge.

Affirmed.

T. M Miller, attorney-general, for the appellant.

The law in relation to the sale of liquors is both a regulation of the traffic and a scheme to raise revenue. In pursuance of the regulation feature, it must be certified to the proper authorities that the applicant is a sober and suitable person to engage in such a dangerous traffic, and a bond is required to secure compliance with the regulations. In its other aspects, the party who carries on the trade is required to contribute to the public revenues. In other words, to pay a tax, the minimum of which is three hundred dollars in cities.

It is the fact of engaging in the business that calls for the contribution or tax, and not the mere compliance with local regulations.

It is assumed that the argument in the lower court on the demurrer was that, admitting the defendants carried on a business for which the state required a tax, still, since the defendants violated the law and rendered themselves liable to a criminal prosecution with its penalties, they could not be sued civilly. In other words, the false assumption was indulged that the state required payment for the permission and consequent protection or immunity from indictment.

The answer is: first, that a criminal prosecution is never designed for the collection of a debt; and second, the state was ready to furnish a formal license if the parties had applied for it in the proper way. Having carried on the trade for which the tax was exacted, the defendants would be taking advantage of their own wrong if they should be permitted thus to escape their civil liability. This would be violative of a fundamental maxim.

Suppose the defendants had gone through the forms of law and obtained a license, but instead of paying money should have innocently or designedly paid in counterfeit money and the same had come into the treasury and remained undiscovered for a year, would it be said they had obtained a valid license? Yet, if sued would they be permitted to avoid payment of the tax on the ground of its invalidity? The above maxim forbids.

But from another point of view this suit is maintainable. By § 594 of code of 1880, it is provided that any one failing to pay the privilege tax imposed, but pursuing the business taxed, may be proceeded against by suit, etc. And by the act of February 24, 1886, the privilege tax on liquors is brought into the statute, if not already there, by fair intendment. See Acts 1886, p. 162.

Suit was properly in the name of the state, as the money goes to the common school fund.

J. M. Gibson, on the same side.

While taxes are not debts in the ordinary sense of the word, and while their collection in general depends upon the remedies given by the statute, yet where there is no remedy specially provided for their collection, a remedy by suit may fairly be implied. Cooley on Tax. 13 et seq. Accepting this as the rule, we contend that there is no adequate remedy in the statutes which provides a special remedy for the collection of such taxes. It is true certain penalties are imposed for failure to pay the tax and take out license, as a punishment for such neglect, dealing with it as a crime.

For such neglect a fine may be imposed within certain limits. Code, § 1112. By § 594 of the code the sheriff is empowered to sue for the unpaid privilege tax. The question then is, whether a liquor license is such a privilege as those enumerated in § 585 of the code, for which the remedy by suit of the sheriff is given. If this be the case, we would only have to amend so as to bring the suit in the name of the sheriff for the use of the state.

But I am of the opinion that § 594 does not apply to this kind of license, because § 585, enumerating privileges, was enacted first, on the 5th March, 1880. See Acts 1880, p. 19.

The tax on retailers of liquors was not there enumerated, but was first embodied in our law in the code 1880, which went into effect November 1, 1880, over six months after § 585 was the law.

No remedy being provided for collecting this tax, a suit in the name of the state was proper. This follows by necessary implication. Cooley on Taxation 300; State v. Williams, 8 Tex. 384.

Martin Marshall, for appellee. No brief on file.

OPINION

ARNOLD, C. J.

If the tax had been imposed or the liability incurred, and no method had been provided by law for its collection, it might well be held, that the legislature contemplated its enforcement by the ordinary remedies, and, from necessity, resort might be had to appropriate legal remedies. The doctrine of the maxim, ubi jus, ubi remedium, would then apply.

But that is not the case before us. On the contrary, the statute which creates the tax or liability, provides a special remedy for its collection. Code, § 1109. In such case, it is generally held, that the remedy provided by statute is exclusive, and that an action does not lie for the recovery of the tax. Camden v. Allen, 2 Dutch. 398; Carondelet v. Picot, 38 Mo. 125; Packard v. Tisdale, 50 Me. 376; Turnpike Corporation v. Gould, 6 Mass. 40; Crapo v. Stetson, 8 Met. 393; Durant v. Supervisors, 26 Wend. 66; Shaw v. Peckett, 26 Vt. 482; Board of Education, etc., v. Old Dominion, etc., 18 W.Va. 441; Lane Co. v. Oregon, 74 U.S. 71, 7 Wall. 71, 19 L.Ed. 101; Cooley on Taxation, §§ 15, 16.

On general principles and the great weight of authority, the...